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Sydney Sol Group Ltd. v. State

Supreme Court, New York County

October 21, 2013

Sydney Sol Group Ltd. f/k/a MUSHLAM INC., Plaintiff,
The State of New York, THE NEW YORK CITY LOFT BOARD, ERIC T. SCHNEIDERMAN, an Attorney General of the State of New York, MARIE NAZOR, and PETER MICKLE (being tenants in occupancy of the building owned by plaintiff at 544 West 27th Street, County of New York, in the City of the State of New York), Defendants.

Unpublished Opinion

For plaintiff: Nativ Winiarsky, Esq. Brandon S. Gribben, Esq. Kucker & Bruh, LLP

For defendants: Bruce H. Wiener, Esq. Warshaw Burstein et al.

Barbara Jaffe, J.

Plaintiff moves for an order granting it leave to amend its complaint, summons, and affidavit of service, and to consolidate this action with Mushlam, Inc. v Nazor, et al., Index No. 100207/08. Defendants Nazor and Mickle oppose, and cross-move for an order dismissing plaintiff's amended complaint for failure to state a cause of action, lack of personal jurisdiction, failure to include necessary parties as defendants, and for sanctions. Plaintiff opposes.


In 2008, plaintiff landlord commenced an action under Index No.100207/08 seeking to eject defendant tenants from the fourth floor of 544 West 27th Street in Manhattan. (NYSCEF 20). By decision and order dated December 31, 2009, the justice previously presiding in this part granted plaintiff summary judgment. (NYSDEF 62 [Index No. 100207/08]).

In 2010, Article 7-C of the Multiple Dwelling Law, also known as the Loft Law, was amended to provide inter alia, that a former commercial-use building which includes three or more families living independently from one another for 12 consecutive months between January 1, 2008 and December 31, 2009 may qualify as an "interim multiple dwelling" (IMD) and thereby be subject to the Loft Board's jurisdiction and protection. And, pursuant to an additional amendment, where two or more families reside independently in a building located within the area north of West 24th Street, south of 27th Street, west of Tenth Avenue, and east of Eleventh Avenue, IMD status may also be conferred. (Multiple Dwelling Law § 281[5]).

By decision and order dated December 13, 2010, the justice granted defendants leave to amend their answer to add as an affirmative defense that the premises are protected by the additional amendment conferring IMD status for a building within which two or more families independently reside within the stated boundaries and pertinent period. He also granted defendants leave to reargue the December 2009 decision, and upon reargument, granted their motion for an order vacating it given the additional amendment. (NYSCEF 21, 48).

On or about September 10, 2012, plaintiff commenced the instant action seeking a declaration that the additional amendment to the Loft Lawis unconstitutional, along with an injunction enjoining defendants from demanding or requiring that it comply with it. (NYSCEF 8).

B. Service upon defendants

On September 24, 2012, plaintiff served pleadingson a woman identifying herself as Marie Nazor. In his affidavit of service, the process server correctly describes Nazor's race, hair color, approximate height, age, and weight, and refers to her gender accordingly, except for ultimately describing it erroneously as male. (NYSCEF 23).

The same day, plaintiff affixed pleadings to Mickle's door after fruitlessly waiting five minutes for a response. Two previous failed attempts to serve Mickle were made on September 19 and September 20. The process server does not state in his affidavit whether he also mailed a copy of the pleadings to Mickle (NYSCEF 32), and Mickle denies any direct encounter with a process server, receiving the pleadings in the mail, and that the pleadings were affixed to the door of his unit. (NYSCEF 31). On or about October 15, defendants answered the complaint, asserting, among other affirmative defenses, that service was defective. (NYSCEF 3).

On October 23, 2012, plaintiff again affixed the pleadings to Mickle's door after again fruitlessly waiting five minutes for a response and after two previously failed attempts on October 19 and October 22. He also mailed a copy of the pleadings to Mickle's address. (NYSCEF 4). Mickle acknowledges receiving a complaint by certified mail in October. (NYSCEF 31).


B. Personal jurisdiction

Defendants allege that the mistaken reference to Nazor's gender in the affidavit of service, as well as the process server's failure to mail a copy of the pleadings to Mickle, constitute fatal defects in service, and that as a result, personal jurisdiction over them has not been obtained. (NYSCEF 31, 35, 46). Plaintiff concedes the error in the Nazor affidavit, but denies that it constitutes a jurisdictional defect, and maintains that in any event, defendants do not dispute that Nazor was actually served. Plaintiff also observes that Mickle, while disputing the September 24 service, alleges no facts rebutting the October 23 service. (NYSCEF 36, 45).

To obtain personal jurisdiction over a defendant, the plaintiff must serve her in a manner authorized by statute. (See Macchia v Russo, 67 N.Y.2d 592, 595 [1986]). As relevant here, personal service is accomplished by delivering the pleading to the defendant herself or to a person of suitable age and discretion at her dwelling place, or if such service cannot be made with due diligence, by affixing the pleading to the defendant's dwelling place and mailing a copy of it to her last known residence. (CPLR 308). The latter method, performed in compliance with CPLR 308(4), is known as "nail and mail" service. (See Farias v Simon, 73 A.D.3d 569 [1st Dept 2010]).

An affidavit of service constitutes prima facie evidence of the sufficiency of that service. (Johnson v Deas, 32 A.D.3d 253 [1st Dept 2006]). To warrant an evidentiary hearing, the defendant must proffer a sworn non-conclusory denial of service rebutting specific facts set forth in the affidavit of service. (City of New York v Miller, 72 A.D.3d 726, 727 [2d Dept 2010]; NYCTL 1998-1 Trust v Rabinowitz, 7 A.D.3d 459, 460 [1st Dept 2004]).

Here, the process server's description of Nazor is not disputed, and apart from one obvious error, contains repeated and accurate references to Nazor's gender. Moreover, defendants do not offer an affidavit from anyone disputing the facts set forth in the affidavit.

While the September 24 affidavit of service contains no indication of whether plaintiff mailed a copy of the papers to Mickle's last known address, the process server swore in his October 25 affidavit that the pleadings were both affixed and mailed on October 23. This constitutes prima facie evidence of proper service. (See CPLR 308[4]). Therefore, Mickle's denial of having encountered a process server and his assertion that the process server failed to affix the pleadings on September 24 are immaterial. Additionally, Mickle concedes having received the complaint by mail in October, and his insistence that the October 23 service does not cure the defect in the September 24 attempt is fatally conclusory (see Miller, 72 A.D.3d at 727 [bare denial of service insufficient to entitle defendant to evidentiary hearing]), and, in any event, incorrect (see IBJ Schroder Bank & Trust Co. v Zaitz, 170 A.D.2d 579 [2d Dept 1991] [re-service "effectively obviated" defendant's jurisdictional defense]; Helfand v Cohen, 110 A.D.2d 751 [2d Dept 1985] [re-service "was entirely appropriate and served to cure the jurisdictional defects of which defendants complained"]; Heusinger v Russo, 96 A.D.2d 883 [2d Dept 1983] [same]).

Defendants have therefore failed to rebut plaintiff's prima facie showing that they were properly served.

B. Failure to state a cause of action

Defendants assert that absent determinations as to the number of families residing within plaintiff's building and whether the additional amendment applies to it, a declaration that it is unconstitutional would have no immediate or practical effect on the parties' rights, and thus, plaintiff's action for a declaratory judgment does not present a justiciable controversy. (NYSCEF 35, 46).

Plaintiff contends that defendants have created a justiciable controversy by seeking protection under the additional amendment, and argues that a declaration that the subsection is unconstitutional would warrant summary judgment in the ejectment action as defendants will be unable to prove that three or more families resided in the buildingduring the pertinent period. (NYSCEF 45).

Pursuant to CPLR 3211(a)(7), a party may move for an order dismissing a cause of action against it on the ground that the pleading fails to state a cause of action. In deciding the motion, the court must liberally construe the pleading, accept the alleged facts as true, and accord the non-moving party the benefit of every possible favorable inference. (Nonnon v City of New York, 9 N.Y.3d 825 [2007]; Leon v Martinez, 84 N.Y.2d 83, 87-88 [1994]). The court need only determine whether the alleged facts fit within any cognizable legal theory. (Leon, 84 N.Y.2d at 87-88; Siegmund Strauss, Inc. v E. 149th Realty Corp., 104 A.D.3d 401 [1st Dept 2013]).

The granting of declaratory relief is left to the sound discretion of the supreme court. (See CPLR 3001; Matter of Morgenthau v Erlbaum, 59 N.Y.2d 143, 148 [1983]). However, courts are constitutionally authorized to resolve only legal issues that would have an "immediate practical effect on the conduct of the parties, " and are prohibited from rendering advisory opinions. (New York Pub. Interest Research Group [NYPIRG] v Carey, 42 N.Y.2d 527, 530 [1977]; see also Cuomo v Long Is. Light. Co., 71 N.Y.2d 349 [1988]).

A justiciable controversy exists when the contingent future event is "contemplated by one of the parties, " as a declaratory judgment "will have the immediate and practical effect of influencing their conduct." (Hussein v State of New York, 81 A.D.3d 132, 135-36 [3d Dept 2011], affd 19 N.Y.3d 899 [2012]).

A declaratory judgment is premature, the Court of Appeals has admonished:

if the future event is beyond the control of the parties and may never occur... Then any determination the court may make would be merely advisory since it can have no immediate effect and may never resolve anything. Thus it is settled that the courts will not entertain a declaratory judgment action when any decree that the court might issue will become effective only upon the occurrence of a future event that may or may not come to pass.

(NYPIRG, 42 N.Y.2d at 531).

In NYPIRG, the Court declined to determine the constitutionality of a voting proposition given the possibility that voters would not approve it, observing that a declaratory judgment "would be merely of abstract interest and moot." (Id.). Similarly, in Saratoga County Chamber of Commerce Inc. v Pataki, the plaintiffs sought a declaratory judgment that the Governor lacked authority to enter into a land-trust agreement with the Mohawk Tribe to develop a casino. The agreement had already been approved by the United States Secretary of the Interior, although the Governor had not yet indicated whether he would sign it. The court thus found that the plaintiff's action was not justiciable as the alleged wrong sought to be enjoined was "wholly speculative and abstract." (275 A.D.2d 145, 158 [3d Dept 2000]).

By contrast, in Hussein, the court declined to dismiss the plaintiffs' action seeking a declaration that various school districts' funding of education failed to meet minimum constitutional standards. Rather, it found compelling the data included in the complaint detailing the lack of adequate funding, as well as factors indicating that the districts would remain underfunded absent judicial intervention. A declaratory judgment, the court reasoned, "will have an immediate and practical effect on the rights and actions of the parties." (81 A.D.3d 132, 137). Similarly, in Prodell v State of New York, the court held justiciable an action seeking a declaratory judgment that legislation providing for a tax assessment reduction was unconstitutional. A lower court had already applied the provision against plaintiffs, resulting in what the court felt was a "substantial likelihood" that the assessment would be reduced. (211 A.D.2d 966, 968 [3d Dept 1995]).

Here, absent any finding as to whether there existed three separate residences in the building during the pertinent period, there is no need to determine whether the additional amendment applies to plaintiff's building, for a determination that three separate residences existed in the building will qualify plaintiff's building as an IMD without resort to the additional amendment.

Moreover, "it is an abuse of discretion for a court to entertain an action for declaratory judgment when there is pending between the parties an action that will fully dispose of the controversy." (Morgenthau, 59 N.Y.2d 143, 155). Here, the issue may be resolved in the course of the ejectment action. (See id. [pendency of criminal actions warranted dismissal of declaratory judgment action]).

Therefore, without a finding that only two families resided in plaintiff's building during the pertinent period and within the pertinent boundaries, a declaration that the additional amendment is unconstitutional will have no immediate and practical impact on the parties, and a declaratory judgment will not dispose of the ejectment action as defendants would still be able to rely on the protection of the Loft Law as it exists without the additional amendment. As in NYPIRG and Saratoga County Chamber of Commerce, what plaintiff seeks to enjoin "may not come to pass." (See also Emipre 33rd LLC v Forward Ass'n Inc., 87 A.D.3d 447, 448 [1st Dept 2011] [declaratory judgment improper when future event plaintiff anticipated was decision made by third-party that may never come to pass]; ABN Amro Bank, N. V. v MBIA Inc., 81 A.D.3d 237 [1st Dept 2011], affd on other grounds 17 N.Y.3d 208 [plaintiffs sought judgment declaring that if other parties defaulted on their securities, they could look to defendants to satisfy their insurance claims; in essence, plaintiffs improperly sought advisory opinion premised on future events not in defendants' control and thus speculative]; Claire v O'Driscoll, 30 A.D.3d 1119, 1121 [1st Dept 2006] [supreme court should not have ruled on rate of interest if a party commenced and prevailed in action]; Bolt Assocs. v Diamonds-In-The-Roth, Inc., 119 A.D.2d 524 [1st Dept 1986] [plaintiffs sought judgment to determine whether revenues received from tenants would be subject to certain classification once premises converted to cooperative; as conversion had not yet occurred and may never occur, conversion itself and potential revenues were hypothetical and there was no justiciable controversy]).

For these reasons, plaintiff fails to state a cause of action for a declaratory judgment.


As the action is not frivolous, sanctions are inappropriate. (See 22 NYCRR 130-1.1[c]).


Given this result, I need not address plaintiff's motion.

Accordingly, it is hereby

ORDERED, that plaintiff SYDNEY SOL GROUP LTD. f/k/a/ MUSHLAM INC.'s motion to amend its summons and affidavit of service and to consolidate this action with Index no. 100207/08 is denied as moot; it is further

ORDERED, that the cross-motion to dismiss is granted and the eighth cause of action of the first amended complaint is dismissed as against defendants MARIE NAZOR and PETER MICKLE; and as no other defendants remain in this action, the complaint is dismissed; and it is further

ORDERED, that defendants' motion for sanctions against plaintiff is denied.

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